Commissioners for Revenue and Customs Bill

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Standing Committee E

Tuesday 18 January 2005

[Sir John Butterfill in the Chair]

Commissioners for Revenue and Customs Bill

Clause 31

Functions

Question proposed [13 January], That the clause stand part of the Bill.

9.25 am

Question again proposed.

The Economic Secretary to the Treasury (John Healey): Thank you, Sir John, and I welcome you back to the Chair.

In discussing the clause, which sets out the functions of the Revenue and Customs Prosecutions Office and the director in particular, the hon. Member for Chichester (Mr. Tyrie) raised a concern that had been put to him by the Law Society. He explained its questions about the interaction between the clause and clauses 54 and 55 of the Serious Organised Crime and Police Bill currently also being considered in Committee.

It may be helpful for the Committee and reassure the hon. Gentleman if I explain how clause 54 of the Serious Organised Crime and Police Bill links with the clause we are considering. It permits the RCPO director along with the Director of Public Prosecutions and the Lord Advocate, or a prosecutor delegated by any of them, to issue a disclosure notice. Such notices can be issued only if the director—in our case, of the RCPO—has reasonable grounds to believe that a person has committed a specified offence and that some other person has information that is relevant to, and will be of substantial value to the investigation of, that offence.

Such a notice excludes from a disclosure notice material such as confidential banking information or personal records relating to any business or profession. The prosecutor would still not be able to authorise the use of coercive powers in relation to materials specified in the notice. If the material is not voluntarily provided in response to the service of the notice authorised by the prosecutor, an application must still be made to a magistrate for a warrant to enter and search premises and seize that material.

It may help the Committee and the hon. Member for Chichester if I confirm the further assurances that the Under-Secretary of State for the Home Department, my hon. Friend the Member for Don Valley (Caroline Flint), gave to the Committee considering the Serious Organised Crime and Police Bill. The use of powers within Her Majesty's Revenue and Customs is subject to a wide-ranging review, which was announced by the Paymaster General. The new powers in the Serious
 
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Organised Crime and Police Bill, which were trailed in ''One Step Ahead'', the White Paper on organised crime, will not be exercised for tax offences pending the outcome of that review of HMRC powers. That was confirmed by the Under-Secretary during Committee proceedings on that Bill. Furthermore, the use of such powers will be subject to guidance issued by the Attorney-General to ensure that they are used only where they are necessary and proportionate.

Mr. Andrew Tyrie (Chichester) (Con): Will that guidance from the Attorney-General be in the public domain?

John Healey: It will indeed. The hon. Gentleman and the Law Society have expressed concerns that the powers relating to tax and excise offensives are wide ranging. That is because the offences in clause 55 to which he drew attention are listed generically and individual instances will inevitably vary in seriousness. Therefore, discretion must be exercised because not all such offences will require or justify the use of SOCAP special powers. That discretion will not be placed with investigators; it will be vested in prosecutors acting under the superintendents of the Attorney-General.

I have to say that the provision offers the necessary safeguards as well as the necessary transparency and it is in line with the overall rationale in the Bill for establishing the RCPO—in other words, it will ensure that there is an independent assessment of the merits of prosecution of HMRC business by lawyers. On that basis, I hope that the hon. Gentleman and the Law Society will be reassured and the Committee will accept the clause.

9.30 am

Mr. Tyrie: I have listened carefully to the Minister. I will think about what he said and discuss it with those who came to me. If I have further concerns, I will bring them for consideration on Report. I am grateful to the Minister.

Question put and agreed to.

Clause 31 ordered to stand part of the Bill.

Clause 32

Functions: supplemental

Amendment made: No. 63, in clause 32, page 16, line 8, at end insert

'(4) A power of the Director under an enactment to institute proceedings may be exercised to institute proceedings in England and Wales only.'.—[John Healey.]

Clause 32, as amended, ordered to stand part of the Bill.

Clause 33 ordered to stand part of the Bill.

Clause 34

Conduct of prosecutions on behalf of the Office

Question proposed, That the clause stand part of the Bill.
 
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John Healey: I shall speak briefly to the clause because I have one or two general points to make may that be of interest, particularly to the right hon. Member for Wells (Mr. Heathcoat-Amory), who is not yet in his place.

I draw attention to the clause because it is a new provision. It permits the director of the RCPO to appoint legally qualified persons who are not employed by him to institute, conduct and advise on prosecutions following HMRC investigations. Appointed persons will need to have the same legal qualification as RCPO prosecutors. The director may appoint such persons on a single set of proceedings or on a specified class of proceedings. Those persons must act in accordance with any instructions given by the director or a designated Revenue and Customs prosecutor. Such flexibility in staffing will be essential to the director, so that the director can properly meet all the requirements of the substantial number of prosecution cases that the RCPO is expected to conduct.

Question put and agreed to.

Clause 34 ordered to stand part of the Bill.

Clause 35 ordered to stand part of the Bill.

Clause 36

Confidentiality

Amendments made: No. 9, in clause 36, page 17, line 10, after 'Office', insert

'in connection with any of its functions,'.

No. 10, in clause 36, page 17, line 17, at end insert

'( ) does not apply to a disclosure made to Her Majesty's Revenue and Customs in connection with a function of the Revenue and Customs (within the meaning of section 21),'.

No. 11, in clause 36, page 17, line 18, leave out 'criminal proceedings,' and insert

'a criminal investigation or criminal proceedings (whether or not within the United Kingdom),'.

No. 12, in clause 36, page 17, line 19, at end insert

'( ) does not apply to a disclosure which in the opinion of the Director is desirable for the purpose of safeguarding national security,'.

No. 95, in clause 36, page 17, line 24, at end insert

'( ) Subsection (3) does not apply to the disclosure of information about internal administrative arrangements of the Revenue and Customs Prosecutions Office (whether relating to a member of the Office or to another person).'.

No. 85, in clause 36, page 18, line 5, at end insert

'(10) In subsection (2) the reference to an enactment does not include—

(a) an Act of the Scottish Parliament or an instrument made under such an Act, or

(b) an Act of the Northern Ireland Assembly or an instrument made under such an Act.'.—[John Healey.]

Clause 36, as amended, ordered to stand part of the Bill.

Clause 37 ordered to stand part of the Bill.

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Clause 38

Expenditure

Question proposed, That the clause stand part of the Bill.

Mr. David Ruffley (Bury St. Edmunds) (Con): I wish to probe the Minister on the question of costs, as there appears to be no provision for them in the Bill. That is mildly surprising because the Prosecution of Offences Act 1985 sets out in considerable detail the basis on which costs might be awarded in favour of the prosecutor, a defendant who may be acquitted or an accused who may be convicted. By analogy, the relevant clauses in the 1985 Act are section 16 for defendants, section 18 for the award of costs against the accused, and section 17 for prosecutors' costs. I thought it might be helpful to remind the Committee of the detailed regime for the award of costs. It is particularly in point to this clause because there are cost implications for the new body, and it would be helpful to hear from the Minister why provisions analogous to those in the 1985 Act are not in the Bill.

There could be resource implications for the body and the Government if costs are awarded to the defence in any prosecution brought by the body. The three cases in which a defence costs order could be made are where an information laid before a justice of the peace for any area charging any person with an offence is not proceeded with; or a magistrates court inquires into an indictable offence; or a magistrates court summarily deals with an offence and dismisses that information. Any person who is not tried for an offence for which he or she has been indicted for trial, and any person who is tried on indictment and acquitted on any account of indictment, would be in the frame for a defence costs order.

For an accused, the analogy is with section 18 of the 1985 Act. In cases where any person is convicted of an offence before a magistrates court, or a Crown court dismisses an appeal against a previous conviction, or any person is convicted of an offence before a Crown court, the court may make an order for costs to be paid by the accused to the prosecutor, such as is just and reasonable.

I will not detain the Committee with reference to the award of costs to the prosecutor. However, I have cited two examples of very specific costs orders that could be awarded. On the one hand, there is a defendant's costs when they are acquitted; and on the other, there are costs when an accused does not defend his or her actions satisfactorily and is convicted or perhaps loses an appeal. In such cases, there are resource implications for the body as it will incur expenditure.

First, will the Minister explain why resource provisions have not been included in the Bill? It seems a strange omission. There may be a good reason for it and for not following the example of the 1985 Act. Secondly, if the deficiency is as I suggest, what measures will she take to remedy that in regulations or in any other manner?

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Prepared 18 January 2005